Supplemental Standing for Severability

FEATURED ARTICLES

The Supreme Court has recently insisted that plaintiffs must have standing for every claim that they raise. But this claim-specific approach to standing is at odds with established practice in several contexts, including rulings on the severability of statutes. Courts often permit plaintiffs to claim that statutory provisions should be invalidated pursuant to severability doctrine, without requiring that they have standing for those claims. This Article argues that existing practice for severability is a form of “supplemental standing.” Supplemental standing is analogous to supplemental jurisdiction. It allows a plaintiff with standing for one claim to raise related claims, even if the plaintiff lacks standing for those other claims. Although the Supreme Court has purported to reject this concept, current law effectively grants supplemental standing for severability claims—and with good reason. When a court rules that part of a statute is unconstitutional, a ruling on severability is necessary to give effect to Congress’s intent regarding the remainder of the statute. Supplemental standing permits those rulings, but claim-specific standing would often prevent them. In the severability context, therefore, supplemental standing is more faithful to the central purpose of standing doctrine: preserving the separation of powers. This Article contends that current practice also implicitly grants supplemental standing in additional contexts, including facial challenges to statutes and cases involving multiple plaintiffs. These examples suggest that, while the claim-specific approach to standing is a useful default rule, the Court has been wrong to insist on that approach as a categorical matter. The Article concludes by exploring additional circumstances in which shifting to a supplemental- standing approach appears to be justified on separation of powers grounds.

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work—work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement suits and potentially chill much creative activity. This Article examines the impact of copyright doctrine on remixes with an emphasis on crowdsourced projects. Such an analysis is particularly salient at this juncture because consumers are neither as passive nor as isolated as they once were. Specifically, large-scale crowdsourced projects raise issues relating to copyright and fair use on a scope and scale never before imaginable. As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (1) reworking the strict liability basis of copyright infringement for noncommercial works, (2) tempering damages awards for noncommercial or innocent infringement, (3) creating an “intermediate liability” regime that gives courts a middle ground between infringement and fair use, (4) developing clearer ex ante guidelines for fair use, and (5) reworking the statutory definition of “derivative work” to exclude noncommercial remixing activities.

FEATURED NOTES

In 2013, the Supreme Court changed the course of its decades-long practice construing Title VII’s antiretaliation provision broadly to protect employees. The Court held in University of Texas Southwestern Medical Center v. Nassar that plaintiffs must assume the onerous, if not impossible, task of proving retaliation claims using the “but- for” causation standard. This high burden of proof not only forces employees with limited information to analyze an employer’s multifaceted motivations, but also it allows employers to skirt around Title VII liability. This decision is troubling because it runs contrary to Congress’s intent to strengthen antidiscrimination laws. Although Justice Ginsberg called for prompt congressional action in her dissent, there is little chance a statutory fix will be enacted in the near future. This Note therefore argues that courts and the EEOC must employ their own stopgap measures to protect employees from Nassar’s adverse effects. It outlines two alternatives to congressional action: first, a judicial reinterpretation of but-for causation that employs modern principles of tort law to create a more realistic burden for plaintiffs; second, an EEOC enforcement mechanism that encourages compliance with antiretaliation laws and effectively roots out frivolous retaliation claims. These proposals are intended to shift the conversation away from the changes Congress should make to Title VII’s language if and when it does take action, to alternative and practicable solutions that can help stem Nassar’s adverse effects while we wait on Capitol Hill.

For over sixty years, the Smith–Mundt Act prohibited the U.S. Department of State and the Broadcasting Board of Governors (BBG) from disseminating government-produced programming within the United States over fears that these agencies would “propagandize” the American people. However, in 2013, Congress abolished the domestic dissemination ban, which has led to a heated debate about the role of the federal government in free public discourse. Although the 2013 repeal of the domestic dissemination ban promotes greater government transparency and may help counter anti-American sentiment at home, it also gives the federal government great power to covertly influence public opinion. To curb the potential harm of surreptitious government propaganda, while also preserving the benefits of repeal, this Note advocates for requiring the State Department and the BBG to clearly attribute any government-produced programming these agencies disseminate within the United States. This Note contends that attribution can be best accomplished in one of two ways: by passing new attribution legislation similar to that of the failed Truth in Broadcasting Act of 2005 or by expanding the judicially created government speech doctrine to require these agencies to properly attribute any materials they distribute to the American public.

NULR Online

In this essay, Professor Wasserman provides new insight into the procedural landscape of marriage-equality litigation in Alabama prior to the Supreme Court's recent decision in Obergefell v. Hodges. By drawing on the limited precedential force of lower federal courts' interpretations of the Constitution and the limited nature of injunctive relief, Wasserman argues that any description of the events in Alabama as "judicial defiance" - or as akin to Alabama's resistance to racial integration in the 1960s - is inaccurate. Wasserman concludes by analyzing Alabama officials' reactions to the Obergefell decision, taking the Obergefell aftermath to further illustrate that, as a matter of judicial procedure, the last stand against marriage equality in Alabama was not as crazy as some commentators have made it out to be.

In this podcast, Professor Destiny Peery moderates a panel of Patrick Brayer, Professor Sarah Jane Forman, and Professor Peter A. Joy, who recently published a three-part series on racial bias in jury selection following a series of high-profile, racially charged events occurring across the country during summer 2014.